2026 WAIRC 00845
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2026 WAIRC 00845



CORAM
:
INDUSTRIAL MAGISTRATE D. SCADDAN



HEARD
:
WEDNESDAY, 26 AUGUST 2026



DELIVERED
:
FRIDAY, 4 SEPTEMBER 2026



FILE NO.
:
M 155 OF 2025



BETWEEN
:
CHAD SILVER


CLAIMANT





AND





PUBLIC TRANSPORT AUTHORITY


RESPONDENT

CatchWords : INDUSTRIAL LAW – Practice and procedure – Application by the respondent to strike out parts of a claim – Whether there is an arguable case – Application by claimant for leave to further amend claim – Whether court should exercise discretion to grant amendment – Turns on own facts
Legislation : Industrial Relations Act 1979 (WA)
Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA)
Cases referred
to in reasons: : Western Australia Prison Officers’ Union of Workers v Minister for Corrective Services [2024] WAIRC 139; (2024) 104 WAIG 322
United Voice WA v The Minister for Health [2011] WAIRC 01065; (2011) 91 WAIG 2337
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
Whitehall Holdings Pty Ltd v Ravi Nominees Pty Ltd (Unreported, WASCA, Library No 9189, 13 December 1991)
Burton v Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76
Shilkin v Taylor [2011] WASCA 255
Hightime Investments Pty Ltd v Lungan [No 2] [2010] WASC 296
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Tomasso v IG Markets Ltd [No 2] [2026] WASC 219
Miller v Minister of Pensions [1947] 2 All ER 372, 374
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362
Result : The respondent’s application is granted in part.
The claimant is refused leave to replead those parts of the claim struck out.
Representation:
Claimant : Self-represented
Respondent : Mr J. Carroll (of counsel)



REASONS FOR DECISION
Background
1 The claimant was employed by the Public Transport Authority of Western Australia (the respondent) as a Level 3 Prosecutions Officer.
2 On 12 November 2025, the claimant lodged a claim against the respondent under s 97A of the Industrial Relations Act 1979 (WA) (IRA), alleging the respondent took damaging action against him, and seeking orders that the respondent reinstate him to his former position; pay compensation for alleged injuries and losses suffered; and the Industrial Magistrates Court (Court, or IMC) issue pecuniary penalties payable to himself (the Claim).
3 On 9 December 2025, the respondent responded to the Claim, but in many instances, it stated that it was unable to respond because the Claim did not adequately identify or particularise the claimant’s alleged case.
4 The parties attended a pre-trial conference before a Clerk of the Court and orders were made requiring the claimant to lodge and serve further and better particulars of claim, which the claimant did on 18 February 2026 (the Further and Better Particulars).
5 In its response to the Further and Better Particulars, the respondent identified that the claimant had not provided further and better particulars of the Claim but had instead expanded the scope of the Claim, introduced new claims, and failed to provide adequate particulars of the matters originally pleaded.
6 On 25 March 2026, the parties attended a directions hearing, where the Court made orders for the claimant to make an application to amend the Claim.
7 On 24 April 2026, the claimant lodged his application to amend the Claim (the Application to Amend) and attached to the application a proposed substituted statement of claim (the Proposed Statement of Claim).
8 The respondent consented to the Application to Amend, subject to numerous paragraphs in the Proposed Statement of Claim being struck out.
9 On 3 June 2026, at the hearing of the Application to Amend, the claimant was granted leave to lodge and serve a substituted statement of claim with a view to remedying deficiencies identified by the respondent in its response to the Application to Amend. I will return to the circumstances of that hearing shortly.
10 On 25 June 2026, the claimant lodged and served his Substituted Statement of Claim (the Substituted Statement of Claim).
11 On or around 22 July 2026, the respondent lodged a response to the Substituted Statement of Claim and on 23 July 2026, the respondent lodged an application to strike out certain paragraphs of the Substituted Statement of Claim (the Strike Out Application).
12 On 5 August 2026, the claimant responded to the Strike Out Application, where he sought to again clarify the Substituted Statement of Claim or consented to certain paragraphs being struck out. To this, the claimant lodged an affidavit, attaching a marked-up version of his Substituted Statement of Claim (Marked-up Statement).
13 Following discussions between the parties concerning aspects of the Substituted Statement of Claim, the respondent confined its Strike Out Application at the hearing to the following paragraphs: 19; 20; 23; 25; 43 and 55.
14 The respondent’s narrowed Strike Out Application also sought to strike out paragraphs 83 and 84 of the Substituted Statement of Claim. However, the respondent did not press that aspect of the Strike Out Application strongly on the basis that the matters raised in those paragraphs could instead be addressed by way of legal submissions at trial. Likewise, the claimant did not strongly oppose the striking out of those paragraphs.
15 In circumstances where neither party expressed a firm position as to whether paragraphs 83 and 84 of the Substituted Statement of Claim should remain or be struck out, I am minded not to strike out those paragraphs, although I note the respondent’s argument.
16 At the hearing of the Strike Out Application, on 26 August 2026, the claimant also provided the Court with a table setting out various concessions and submissions made by him. However, the table did not record any concession in respect of the respondent’s narrowed application referred to in paragraph [13] above (the Table).
Substituted Statement of Claim
17 The claimant identifies the basis upon which he says he was employed by the respondent and the roles and responsibilities he says he was employed to do.
18 The claimant also identifies a number of other employees employed by the respondent who he refers to in the Substituted Statement of Claim.
19 The claimant purports to rely upon eleven complaints he says he made during the course of his employment.
20 While I have used the word ‘complaint’ in these reasons to describe the matters raised by the claimant, that term should not be taken as indicating any concluded view that those matters constitute employment-related complaints or inquiries for the purposes of s 97A of the IRA.
21 For the purposes of determining the Strike Out Application, I will refer only to the following complaints, being the complaints that form the basis of the respondent’s narrowed Strike Out Application:
(a) Complaint Two contained in paragraphs 19 and 20 of the Substituted Statement of Claim;
(b) Complaint Three contained in paragraph 23 of the Substituted Statement of Claim;
(c) Complaint Four contained in paragraph 25 of the Substituted Statement of Claim; and
(d) Complaint Eleven contained in paragraph 43 of the Substituted Statement of Claim.
22 The claimant alleges that the respondent took five actions against him which he says constitutes damaging action within the meaning of s 97 of the IRA.
23 For the purposes of determining the Strike Out Application, I will refer only to the following alleged damaging action, being the alleged damaging action that forms the basis of the respondent’s narrowed Strike Out Application:
(a) Damaging Action Two (resumption of duties) contained in paragraph 55 of the Substituted Statement of Claim.
24 Attached to these reasons at Schedule II is a copy of Complaints Two, Three, Four and Eleven and Damaging Action Two.
Complaint Two
25 The respondent submits that paragraph 19(a) of the Substituted Statement of Claim refers to a complaint allegedly made by the claimant, initially orally to Mr Kerry Panting (Mr Panting) and subsequently in writing. However, the claimant does not plead when the alleged oral complaint was made, the substance or effect of what was said in any communication said to constitute the complaint, or identify the written communication in which the complaint was allegedly made.
26 At the hearing, the respondent further submitted that paragraph 19 of the Substituted Statement of Claim lacks sufficient particularity, in that it does not set out the substance of any alleged complaint. The respondent also submitted that paragraph 20(b) was unlikely to provide relevant context for paragraph 19, given that the events alleged in paragraph 20 occurred approximately six months later and did not involve Mr Panting.
27 The respondent submits that paragraph 20 of the Substituted Statement of Claim is similarly deficient because it lacks sufficient detail and does not plead the substance of any alleged complaint. The respondent further submits that a mere reference to an email is insufficient to identify or particularise the complaint relied upon.
28 In the Table, the claimant stated that paragraph 19(a) of the Substituted Statement of Claim refers to a complaint made orally to Mr Panting. The claimant further stated that the particulars of those discussions, insofar as they are relevant, are contained in paragraphs 19(b) and 19(c), and that the particulars of the written complaint are contained in paragraph 20(b) of the Substituted Statement of Claim.
29 In the Table, the claimant stated that paragraph 20 of the Substituted Statement of Claim had been amended to provide further and better particulars.
Complaint Three
30 Referring to the Marked-up Statement at the hearing, the respondent further submitted that the ‘track changes’ to paragraph 23 does not inform the respondent what communication amounted to a complaint.
31 In the Table, the claimant said paragraph 23 of the Substituted Statement of Claim had been amended to provide better particulars.
Complaint Four
32 The respondent submits that the chapeau to paragraph 25 of the Substituted Statement of Claim does not identify with sufficient precision the particular complaint or inquiry upon which the claimant relies.
33 At the hearing, the respondent further submitted that paragraph 25 does not adequately particularise the substance of any alleged complaint. The respondent also submitted that, although the paragraph refers to emails sent by the claimant, the dates of those emails do not correspond with the chapeau to the alleged Complaint Four.
34 However, while maintaining its primary position that paragraph 25 should be struck out, the respondent referred to the mark-ups to paragraph 25(d) of the Marked-up Statement and indicated that it had identified an email sent by the claimant on 5 May 2025 bearing the same subject heading.
35 In the Table, the claimant conceded the striking out of paragraph 25(a) of the Substituted Statement of Claim and stated that the remainder of paragraph 25 had been amended to provide further and better particulars.
Complaint Eleven
36 The respondent submits that paragraph 43 of the Substituted Statement of Claim fails to identify with precision the specific complaint or inquiry relied upon by the claimant.
37 At the hearing, the respondent submitted that paragraph 43 of the Substituted Statement of Claim lacked any detail of any complaint and the reference to a letter dated 22 July 2025 did not, of itself, provide the substance of any alleged complaint made.
38 The Table did not address paragraph 43 of the Substituted Statement of Claim.
39 More generally, however, the claimant sought a further opportunity to remedy the defects identified by the respondent. I return to that submission below.
Damaging Action Two
40 The respondent submits that paragraph 55 of the Substituted Statement of Claim alleges that the respondent, acting through Mr Peter Armstrong (Mr Armstrong), took damaging action against the claimant by failing to restore his court duties. The respondent submits that the pleading does not allege that Mr Armstrong, or any other employee of the respondent, made a specific decision not to restore those duties. The respondent further submits that an allegation of damaging action requires the identification of a particular decision or act, together with identifying the person responsible for making the decision or taking the action so that person can be called to give their reasons behind their decision or action.
41 In the Table, the claimant stated that the dispute concerns the proper characterisation of the pleading and raises a question of law. By way of example, the claimant contended that, although a decision may initially be lawful when made pending the outcome of an investigation or the receipt of further evidence, it may subsequently become unlawful if no action is taken once the relevant outcome or evidence becomes known.
42 At the hearing, the claimant referred to paragraph 53(g) of the Substituted Statement of Claim, which he submitted provides the factual foundation for the allegation in paragraph 55.
Legislative Framework – Section 97A of the IRA
43 Section 97A(1) of the IRA provides that an ‘employer must not take damaging action against an employee for the reason, or for reasons that include, that the employee is able to make an employment-related inquiry or complaint to the employer or another person.’
44 Section 97(a) of the IRA defines ‘damaging action’ against an employee to mean:
(i) dismissing the employee;
(ii) altering the employee’s position to the employee’s disadvantage;
(iii) refusing to promote or transfer the employee;
(iv) otherwise injuring the employee in relation to the employee’s employment with the employer or another person; or
(v) threatening to do anything referred to in subparagraphs (i) to (iv).
45 Section 97A(2) of the IRA provides that in relation to s 97A(1), ‘if it is proved that an employer took the damaging action against the employee, it is for the employer to prove that the employer did not do so because the employee made the inquiry or complaint or proposed to make the inquiry or complaint.’
46 A contravention of s 97A(1) is a civil penalty provision for the purposes of s 83E of the IRA.
47 The claimant bears the onus of proving on the balance of probabilities that the respondent took damaging action against him, what the damaging action was (within the meaning of s 97(a)), and that the reason the damaging action was taken was because the claimant made an employmentrelated injury or complaint to the respondent or to some other person.
48 For the respondent to know the case against it and what it is required to respond to, at the very least, the claimant should clearly set out:
(1) What ‘damaging action’ (as that term is defined in s 97 of the IRA) they say was taken by the respondent (as the employer) or if it was a person other than the respondent, how or why it is alleged that conduct can be imputed to the respondent;
(2) The reason or reasons for why they say the damaging action was taken; and
(3) If they allege that the damaging action was made in response to an employmentrelated inquiry or complaint, what inquiry or complaint was made, when was it made, to whom was it made, and what is the basis upon which it is asserted that the inquiry or complaint was one which the employee was ‘able to make’?
Determination
49 The Court is not a court of pleadings. However, the principles stated by the Full Bench in Western Australia Prison Officers’ Union of Workers v Minister for Corrective Services [2024] WAIRC 139; (2024) 104 WAIG 322 at [15]  [16] are apposite to the Claim. Namely, a contravention of s 97A of the IRA is a civil penalty provision and the respondent may be liable for a civil penalty of up to $650,000 if it is a serious contravention, or up to $65,000 if it is not a serious contravention. Further, s 97A of the IRA contains a reverse onus provision where, if the claimant proves damaging action was taken, the respondent is then required to prove it was not taken because the claimant made the inquiry or complaint. Accordingly, the respondent must have a fair opportunity to know what inquiry or complaint was made and the reason the claimant says this resulted in the respondent taking damaging action.
50 The Court has the power to strike out (or summarily dispose of) a claim on the basis that there is no reasonable prospect of success. United Voice WA v The Minister for Health [2011] WAIRC 01065; (2011) 91 WAIG 2337.
The Court’s duties in dealing with cases are set out in reg 5 of the Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA) (Regulations). The IMC is exercising federal jurisdiction in respect of the Claim and the Regulations apply to govern the practice and procedure of the IMC in this regard.
Regulation 7 of the Regulations sets out what the IMC may do for the purpose of controlling and managing cases and trials, including, at reg 7(1)(h) ‘order that an issue not be tried’, and at reg 7(1)(r) ‘take any other action or make any other order for the purpose of complying with regulation 5.’ This would also include striking out part of a claim for the same reasons.
51 Therefore, the Court has the power to make the order sought by the respondent if it concludes the Claim is so clearly untenable that it could not possibly succeed and, if that circumstance exists, to dismiss the claim so as to deal with the case efficiently, economically and expeditiously to ensure that the Court’s resources are used as efficiently as possible. Regulation 5(2)(a) and reg 5(2)(c) of the Regulations.

52 The power to order the strike out of the whole a claim is one that should be exercised with great care. Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87.

53 A party has an obligation to provide particulars of an arguable claim (as the case may be) and to provide a statement of facts which go to show that it is arguable. Whitehall Holdings Pty Ltd v Ravi Nominees Pty Ltd (Unreported, WASCA, Library No 9189, 13 December 1991).

54 Disposal of a claim summarily ‘will never be exercised unless the [party’s] claim is so obviously untenable that it cannot possibly succeed.’ Burton v Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76, 92 (see also Shilkin v Taylor [2011] WASCA 255 [29]).

55 To that I would also add that for similar reasons the Court has the power to order part of a case be struck out on the basis that it discloses no reasonable cause of action; it is likely to cause prejudice or delay; is evasive or ambiguous; or contains frivolous or vexatious material.
56 In closing submissions on the Strike Out Application, the claimant submitted that, rather than striking out the identified paragraphs, he should be afforded a further opportunity to confer with the respondent and amend the Substituted Statement of Claim to address the deficiencies raised during the hearing.
57 The Court has the power to allow a party to amend any document lodged by the party. Regulation 7(1)(l) of the Regulations where ‘document’ is defined in reg 4 to mean ‘any record that is or is capable of being put on paper’.

58 In Hightime Investments Pty Ltd v Lungan [No 2] [2010] WASC 296, Beech J, at [52], referring to Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175, summarised the observations relevant to the exercise of a discretionary power to allow or refuse amendment(s) to a pleading(s): Also referred to more recently in Tomasso v IG Markets Ltd [No 2] [2026] WASC 219 [9].

(a) the effect of an amendment on the court and on other litigants is relevant;
(b) there is no right to amend to introduce an arguable case and it is wrong to say that only in extreme circumstances would a party be shut out from litigating an arguable case;
(c) justice requires that parties have a proper opportunity to plead their case, but limits may be placed on repleading when delay and cost are taken into account;
(d) a just resolution does not mean that a party will always be permitted to raise any arguable case at any point in the proceedings, on payment of costs, even indemnity costs;
(e) the inevitable strains of litigation must be taken into account in weighing the adverse consequences of delay ‑this applies to natural persons and other litigants;
(f) the nature and importance of the amendment to the party amending must be taken into account;
(g) attention must be given to the extent of the delay, and the costs associated with it, the prejudice which might reasonably be assumed to follow from it and any prejudice that is shown;
(h) the point in the litigation relative to the trial may be an important consideration;
(i) where a discretion is sought to be exercised in favour of a party, an explanation will be called for;
(j) the point can be reached where a party has had a sufficient opportunity to put its case.
Should the Paragraphs Identified by the Respondent be Struck Out?
Complaint Two
59 Paragraphs 19 and 20 of the Substituted Statement of Claim comprise Complaint Two.
60 The Claim did not refer to Complaint Two.
61 The Claim relied upon the following complaints (using the terminology and headings in the Claim):
(a) Pay Classification Complaint.
(b) Unilateral Change of Duties Complaint.
(c) The Crime and Corruption Commission Concerns Complaint.
(d) The Unsafe Workplace Complaints.
(e) The Criminal Charge Complaint.
(f) The Public Interest Disclosure Victimization Claim.
62 Of the complaints referred to in the Claim, the complaint concerning the unilateral alteration of the claimant’s duties is the closest in subject matter to Complaint Two. The gravamen of this complaint is that, in or about February 2025 or April 2025, the claimant complained to Mr Armstrong about a decision to restrict or remove his duties relating to court appearances for prosecutions. The claimant further alleges that he escalated that complaint to an unidentified person or department, thereby irritating Mr Armstrong. The claimant alleges that, as a consequence, Mr Armstrong took damaging action against him. The Claim makes no reference to Ms Tahlia Briggs (Ms Briggs).
63 The alleged damaging action was subsequently particularised in the Further and Better Particulars as the failure to reinstate the claimant’s role and responsibilities, including his court attendance duties. The claimant further alleges a connection between that damaging action and complaints made prior to that time.
64 In the Further and Better Particulars, the claimant introduced what appears to be a separate complaint under the heading ‘Bullying by Ms Tahlia Briggs’, in which he makes a number of allegations concerning Ms Briggs. The claimant also appears to allege that he made complaints to Mr Armstrong, although the nature of those complaints is not always clearly identified. Those complaints may have included matters concerning legal costs incurred in dealing with correspondence from the Legal Practice Board of Western Australia (LPB).
65 Beyond alleging that he made a complaint concerning bullying conduct, and asserting in general terms that damaging action was taken against him because of the temporal proximity between the complaint and the alleged damaging action, the claimant provides little further detail. In particular, although the claimant identifies the relevant decision-makers as the Managing Director, the Director and the Acting Transperth Train Operations Manager, no further particulars are provided as to the alleged causal connection between the complaint and the damaging action.
66 The Proposed Statement of Claim says the claimant made multiple complaints about Ms Briggs in writing and orally, but provides no detail of the substance of the complaints and when they were made other than a date range.
67 Paragraphs 19 and 20 in the Substituted Statement of Claim are identical to paragraphs 19 and 20 in the Marked-up Statement, save that paragraph 20(a) has a minor amendment and paragraph 20(b) provides the time an email was sent and states the subject line of the email.
68 Complaint Two purports to be two complaints:
(1) a complaint about Ms Briggs initiated ‘in December 2023’ in her communication with the LPB; and
(2) complaints to various people between December 2023 and July 2024 about legal fees incurred by the claimant in communicating with the LPB.
69 Paragraph 19 of the Substituted Statement of Claim refers to the complaint about Ms Briggs being made orally and later in writing. The claimant refers to an oral conversation alleged to have occurred with Mr Panting in December 2023 following the receipt of some correspondence from the LPB and Mr Panting’s response to that.
70 The claimant says the later follow up in writing is referred to in the email in paragraph 20(b). However, no further detail is provided.
71 While less than ideal, I am satisfied that paragraph 19 contains sufficient detail to enable the respondent to plead to it, subject to the striking out of the reference in paragraph 19(a) to the complaint having been ‘later made in writing’. Whether the balance of paragraph 19 discloses an employment-related complaint or inquiry for the purposes of s 97A of the IRA is a matter that will likely fall for determination at any subsequent hearing.
72 The matter pleaded in paragraph 20 appears to concern a different complaint from that referred to in paragraph 19, albeit one that is alleged, at least in part, to have arisen from a complaint made by Ms Briggs to the LPB. There remains a lack of clarity as to what was allegedly ‘written later’ and whether that allegation refers to the email identified in paragraph 20(b), which was sent approximately six months after the events referred to in paragraph 19.
73 Notwithstanding the further particularisation provided in the Marked-up Statement, paragraph 20 of the Substituted Statement of Claim remains deficient in material respects. In particular, it does not adequately identify when the alleged complaint was made, to whom it was made, or the substance of the complaint beyond a reference to the incurring of legal fees. This remains so despite the apparent attempt to recast the allegation as a distinct complaint.
74 In those circumstances, I am not satisfied that paragraph 20 of the Substituted Statement of Claim pleads sufficient material facts to disclose an arguable claim. The pleaded particulars are insufficient to demonstrate that the claim advanced is reasonably arguable. Accordingly, I am satisfied that paragraph 20 should be struck out.
Complaint Three
75 Paragraph 23 of the Substituted Statement of Claim comprises Complaint Three.
76 Of the complaints referred to in the Claim, the complaint relating to ‘unsafe workplace complaints’ is the closest in subject matter. The complaint is briefly pleaded. The claimant alleges he made multiple reports of unsafe workplace practices specifically in relation to psychosocial hazards and that each complaint was escalated beyond Mr Armstrong to the Occupational Health and Safety Team.
77 The Further and Better Particulars contain no additional details about the alleged complaints of unsafe workplace practices.
78 The Proposed Statement of Claim refers to a complaint about the ‘toxic culture’ in the workplace but provides no details beyond an email being sent on 23 May 2025 and some unspecified conversations with Mark Wirski.
79 Paragraph 23 of the Substituted Statement of Claim is substantially identical to paragraph 23 of the Marked-up Statement, save that additional detail has been provided in paragraphs 23(b), 23(c) and 23(d).
80 The claimant alleges the complaint was made both orally and in writing.
81 However, notwithstanding the additional matters pleaded in paragraph 23(b) of the Marked-up Statement, there remains a lack of detail concerning the content of any oral conversation alleged to have taken place with Mr Panting, including what aspect of that conversation is said to constitute a complaint and when the conversation occurred. Further, although the claimant alleges that complaints were made during ‘discussion sessions’, no particulars are provided of any complaint said to have been made during those sessions.
82 While less than ideal, I am satisfied that paragraphs 23(c) and 23(d) of the Substituted Statement of Claim contain sufficient detail to enable the respondent to plead to them. Both paragraphs refer to an email sent by the claimant, identify the recipient of the email and, in a general sense, identify its subject matter.
83 However, I am not satisfied that paragraph 23(b) of the Substituted Statement of Claim is pleaded with sufficient particularity to permit the respondent fairly to respond to it. Further, I am not satisfied that paragraph 23(b) pleads sufficient material facts to disclose an arguable claim. The pleaded facts are insufficient to demonstrate that the claim advanced is reasonably arguable.
84 Accordingly, I am satisfied that paragraph 23(b) of the Substituted Statement of Claim should be struck out, together with the reference to ‘both oral’ in paragraph 23(a) and the words ‘During and’ in the chapeau to paragraph 23.
85 As with paragraph 19, whether the balance of paragraph 23 constitutes an employment-related complaint or inquiry for the purposes of s 97A of the IRA is a matter that will likely fall for determination at a future hearing.
Complaint Four
86 Paragraph 25 of the Substituted Statement of Claim comprises Complaint Four.
87 This complaint concerns the claimant’s pay classification. It is one of the complaints identified in the Claim, in which the claimant alleges that he complained about his pay classification on the basis that there had previously been a determination of the Western Australian Industrial Relations Commission concerning his role.
88 The Further and Better Particulars provide no additional detail regarding the pay classification complaint.
89 Paragraph 25 of the Substituted Statement of Claim is substantially identical to paragraph 25 of the Marked-up Statement, save that additional detail has been provided in paragraphs 25(b), (c) and (d) of the Marked-up Statement. The claimant concedes paragraph 25(a) should be struck out.
90 I note that the respondent identified an email dated 5 May 2025 for the purposes of paragraph 25(d) of the Marked-up Statement, whereas the claimant alleges that he sent the relevant email at 11.29 am on or about 7 May 2025. Subject to confirmation that the email referred to in paragraph 25(d) is the same email identified by the respondent, I am not satisfied that the balance of paragraph 25 should be struck out.
91 Unlike some of the other complaints relied upon by the claimant, the complaint concerning pay classification has formed part of the Claim throughout its various iterations. Again, while less than ideal, I am satisfied that the remaining parts of paragraph 25 of the Substituted Statement of Claim contain sufficient detail to enable the respondent to understand the nature of the complaint and plead to it.
Complaint Eleven
92 Paragraph 43 of the Substituted Statement of Claim comprises Complaint Eleven.
93 The claimant alleges that, during 2025, he raised concerns and made complaints to the respondent about its failure to conduct a fair and proper disciplinary procedure. However, the only date identified in support of that allegation is, by way of example, a letter dated 22 July 2025. Otherwise, the claimant does not identify when the alleged complaints were made, to whom they were made, or the substance of those complaints beyond a general assertion that the process was unfair.
94 Notably, Complaint Eleven is relied upon in connection with the fifth alleged damaging action, namely, the termination of the claimant’s employment. However, the pleading does so only in the sense that the claimant alleges that the disciplinary process was unfair. It does not identify any complaint made by the claimant concerning that alleged unfairness, nor does it plead that such a complaint was a reason for the decision to terminate his employment.
95 The Claim did not identify any complaint made by the claimant about the disciplinary process which is then alleged to have been a reason for any damaging action taken by the respondent. With respect to the claimant, the Claim and its subsequent iterations appear to conflate the claimant’s grievance concerning the fairness of the disciplinary process generally (which is not itself the subject of s 97A) with the making of an employmentrelated complaint or inquiry to a particular person, and an allegation that the employmentrelated complaint or inquiry was a reason for subsequent damaging action.
96 Neither the Claim nor the Further and Better Particulars provide any meaningful assistance in identifying what complaint was allegedly made, to whom it was made, when it was made, or how it is said to have contributed to any alleged damaging action. Rather, the Claim, the Further and Better Particulars, and the Substituted Statement of Claim advance allegations of unfairness in relation to the disciplinary process in general terms. Section 97A of the IRA, however, is not directed to generalised allegations of unfairness in a disciplinary process.
97 In those circumstances, I am not satisfied that paragraph 43 of the Substituted Statement of Claim pleads sufficient material facts to disclose an arguable claim. The pleaded particulars are insufficient to demonstrate that the claim advanced is reasonably arguable.
98 I am satisfied that paragraph 43 of the Substituted Statement of Claim should be struck out.
Paragraph 55
99 Paragraph 55 of the Substituted Statement of Claim alleges that Mr Armstrong failed to restore the claimant’s court attendance duties following the receipt of an email from the claimant dated 25 February 2025.
100 Paragraph 55 of the Substituted Statement of Claim forms part of Damaging Action Two.
101 The difficulty with paragraph 55 is that it is premised upon an allegation that Mr Armstrong failed to take a particular step, namely restoring the claimant’s court duties, without pleading any decision made by Mr Armstrong not to do so. As presently pleaded, the paragraph does not identify any act or decision on the part of Mr Armstrong and instead invites speculation as to what the claimant contends Mr Armstrong ought to have done. Nor is this deficiency remedied by paragraph 53(g) of the Substituted Statement of Claim, as submitted by the claimant, given that paragraph 53(g) relates to a different date and does not provide the necessary factual foundation for the allegation in paragraph 55.
102 In those circumstances, I am not satisfied that paragraph 55 of the Substituted Statement of Claim pleads sufficient material facts to disclose an arguable claim. The pleaded particulars are insufficient to demonstrate that the claim advanced is reasonably arguable.
103 I accept the respondent’s submission that it is unable properly to plead to paragraph 55 of the Substituted Statement of Claim. Accordingly, I am satisfied that paragraph 55 should be struck out.
Should the Claimant be Granted Leave to Replead?
104 Although the claimant did not formally apply for leave to replead the Substituted Statement of Claim, he raised that possibility at the conclusion of the hearing of the Strike Out Application. The respondent opposed that course. I have treated the claimant’s submission as an application for leave to replead those paragraphs, or parts of paragraphs, that are the subject of the respondent’s narrowed Strike Out Application. The grant of leave to replead is a matter of discretion.
105 Notwithstanding that evidence has not yet been lodged with the Court and no trial date has been fixed, I decline to grant leave to replead the struck out paragraphs of the Substituted Statement of Claim for the following reasons.
106 The Claim was lodged on 12 November 2025. Since the respondent filed its response to the Claim, the claimant has been on notice that certain aspects of the Claim were said to be unclear or incapable of meaningful response.
107 The Further and Better Particulars were intended to clarify those issues. They did not do so. Instead, the claimant sought to introduce allegations not contained in the original Claim and failed to adequately particularise those aspects of the Claim that required further detail. In its response to the Further and Better Particulars, the respondent again identified those matters said to be unclear or incapable of meaningful response.
108 On 25 March 2026, the Court identified deficiencies in the Claim and the Further and Better Particulars and afforded the claimant a further opportunity to remedy them. That process resulted in the filing of the Application to Amend and the Proposed Statement of Claim, which did not wholly resolve those issues in the manner intended.
109 On 3 June 2026, following considerable intervention by the Court, the claimant was afforded a further opportunity to amend his case. At that time, however, the Court expressly indicated that no assurance could be given that further opportunities to amend would be granted.
110 The claimant lodged the Substituted Statement of Claim on 25 June 2026. The respondent thereafter lodged the Strike Out Application, again identifying those aspects of the claimant’s case said to remain unclear or incapable of meaningful response.
111 Between late July 2026 and at least 5 August 2026, the parties appear to have engaged in a conferral process directed towards assisting the claimant to formulate his claim. Consistent with that objective, the Court acceded to the parties’ request that a directions hearing be vacated.
112 That process resulted in the Marked-up Statement lodged in response to the Strike Out Application, which narrowed the issues in dispute but did not resolve all of the deficiencies identified by the respondent.
113 Since November 2025, there have effectively been four attempts to settle pleadings that clearly articulate the claimant’s case and permits the respondent properly to plead to it. By any reasonable measure, the claimant has been afforded a fair opportunity to formulate and present his case.
114 In my view, however, the point has now been reached where a further opportunity to replead should not be granted.
115 The claimant indicated that he wished to engage in further conferral with counsel for the respondent concerning the disputed paragraphs. With respect to the claimant, the respondent has already adopted a cooperative approach in attempting to resolve pleading issues. It is not the role of the respondent, or its legal representatives, to continue assisting the claimant to formulate his case, particularly where similar deficiencies have repeatedly been raised.
116 Further, there is no proposed amended pleading or pleadings before the Court. Accordingly, there is no basis upon which the Court can assess whether any further amendments would cure the identified deficiencies or disclose an arguable case for the struck out paragraphs.
117 In the meantime, the proceedings have advanced only marginally beyond its position in November 2025. The Court is obliged to ensure that proceedings are conducted justly, efficiently and expeditiously, and that judicial resources are used proportionately and effectively. The claimant has already been afforded multiple opportunities to amend and refine his case.
118 There comes a point at which the Court cannot continue to permit further amendments in the hope that satisfactory pleadings may eventually emerge. Nor, and notwithstanding that the respondent is a public authority, is it appropriate that the respondent continue to incur the expense and delay associated with responding to successive rounds of unspecified amendments.
119 The pleadings must now be brought to finality. The respondent is entitled to finalise its response to the claimant’s case, and the parties should proceed to prepare the matter for hearing.
Outcome
120 For the reasons given, the following paragraphs or parts of the following paragraphs of the Substituted Statement of Claim are struck out:
(a) Paragraph 19(a) – ‘and later made in writing’;
(b) Paragraph 20 – the whole of the paragraph;
(c) Paragraph 23 (chapeau) – ‘During and’;
(d) Paragraph 23(a) – ‘both oral and’;
(e) Paragraph 23(b) – the whole of the subparagraph;
(f) Paragraph 43 – the whole of the paragraph; and
(g) Paragraph 55 – the whole of the paragraph.
121 Subject to the claimant confirming that the email referred to in paragraph 25(d) of the Substituted Statement of Claim is the email dated 5 May 2025 identified by the respondent, and not an email dated 7 May 2025, paragraph 25(d) will not be struck out. In the absence of such confirmation, paragraph 25(d) will be struck out.
122 For the reasons given, the claimant is refused leave to replead the paragraphs, and parts of paragraphs, struck out from the Substituted Statement of Claim.
Orders
1. The Strike Out Application is granted in part.
2. Pursuant to reg 7(1)(h) of the Regulations, the following paragraphs or parts of paragraphs of the Substituted Statement of Claim lodged 25 June 2026 will be struck out:
(a) Paragraph 19(a) – ‘and later made in writing’;
(b) Paragraph 20 – the whole of the paragraph;
(c) Paragraph 23 (chapeau) – ‘During and’;
(d) Paragraph 23(a) – ‘both oral and’;
(e) Paragraph 23(b) – the whole of the subparagraph;
(f) Paragraph 43 – the whole of the paragraph; and
(g) Paragraph 55 – the whole of the paragraph.
3. Within 2 days of the date of these orders, the claimant is to inform the respondent and the Court whether the email referred to in paragraph 25(d) of the Marked-up Statement is dated 5 May 2025.
4. Within 7 days of the date of these orders, the claimant is to lodge with the Court and serve upon the respondent a marked-up version of the Substituted Statement of Claim, together with a Form 29 – Multipurpose Form, reflecting the:
(a) orders made in relation to the Strike Out Application; and
(b) concessions recorded in the Table.
5. Within 21 days after service of the marked up version of the Substituted Statement of Claim, the respondent is to lodge with the Court and serve upon the claimant its further response to the Substituted Statement of Claim together with a Form 29 – Multipurpose Form.
6. The claim is to be listed for a directions hearing on a date to be fixed, not before 10 October 2026.




D. SCADDAN
INDUSTRIAL MAGISTRATE


SCHEDULE I: Jurisdiction, Practice and Procedure of the Industrial Magistrates Court (WA)
Jurisdiction
[1] The IMC has the jurisdiction conferred by the IRA and other legislation. Section 81A and 97A of the IRA confer jurisdiction on the IMC in respect of a claim known as ‘damaging action’ involving an employee and an employer.
[2] For the purposes of s 97A of the IRA, s 97B of the IRA provides the orders the IMC may make, which includes reinstatement of an employee, employment of an employee and compensation for loss or injury suffered as a result of damaging action. In addition, a contravention of s 97A(1) of the IRA is a civil penalty provision for the purposes of s 83E: s 97A(3) of the IRA.
[3] ‘Damaging action’ is defined in s 97 of the IRA, along with the terms ‘employee’ and ‘employer’.
[4] The powers, practice and procedure of the IMC are contained in the Regulations.
Contravention
[5] Contravention of a civil penalty provision may result in a pecuniary penalty; in the case of a body corporate, a penalty of $650,000 if the contravention is a serious penalty or $65,000 if it is not a serious contravention: s 83E(1)(a)(i) and (ii) of the IRA.
Burden and standard of proof
[6] In an application under the IRA, the party making an allegation to enforce a legal right or to relieve the party of a legal obligation carries the burden of proving the allegation. The standard of proof required to discharge the burden is proof ‘on the balance of probabilities’. In Miller v Minister of Pensions [1947] 2 All ER 372, 374, Lord Denning explained the standard in the following terms: It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal, it is not.
[7] Notably, pursuant to s 97A(2) of the IRA, if it is proved the employer took damaging action against the employee, the employer is then required to prove it did not take damaging action because the employee made a complaint or inquiry.
[8] In the context of an allegation of the breach of a civil penalty provision of the IRA it is also relevant to recall the observation of Dixon J said in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.


SCHEDULE II: Copies of Complaints and Alleged Damaging Action
Complaint Two
19. In December 2023, the Claimant initiated a complaint against Miss Tahlia Briggs regarding her communications with the Legal Practice Board of Western Australia about the Claimants employment as a Prosecutor at the PTA.
Particulars
a. The Complaint was initially made by the Claimant orally to Mr Kerry Panting and later made in writing.
b. In December 2023, the Claimant spoke to Mr Panting, having received correspondence from the Legal Practice Board of Western Australia (LPBWA).
c. Mr Panting advised the Claimant that:
i. he was aware of Miss Tahlia Briggs communication with the LPBWA,
ii. had referred the matter to the People Organization and Development (POD) Team, and;
iii. disciplinary matters were already initiated.
20. In Between December 2023 to July 2024, the Claimant made raised complaints to Mr Peter Armstrong, Mr Kerry Panting, Mr Jeremy Carroll, Mr Ryan Miernik and Mrs Tiffany Pidala, orally and via email, in relation to the significant legal fees there were being incurred by the Claimant in replying to the LPBWA correspondence.
a. Those complaints were made orally and may have been recorded in writing.
b. On 29 June 2024, the Complainant followed up the complaint in writing via an email sent to Peter Morgan and Afolabi Adabonyan from the POD Team.
Complaint Three
23. During and after these ‘discussion sessions’, the Claimant raised complaints about how matters were previously handled and the traumatic nature of the sessions.
Particulars
a. The Complaint was both oral and in writing.
b. After the first session, which may have occurred on or around 30 July 2024, the Claimant raised concerns orally with Mr Kerry Panting in his office after the session. Mrs Souzi Clifford was present.
c. which may have occurred on or around 30 July 2024, the Claimant raised concerns orally with Mr Kerry Panting in his office after the session. Mrs Souzi Clifford was present.
d. On 16 March 2025, The Claimant sent an email to Mr Ryan Miernik, Mr Christopher Donnelly and Mr Lee Ash (Health and Safety Team) advising of his need to take time off as a result of matters arising and the Thursday Workshop.
e. As a result of the 16 March 2025 email, the complaint was raised as a Psychosocial hazard by the Safety Team.
Complaint Four
25. On or around July 2024, the Claimant initiated an employment-related inquiry or complaint regarding his pay classification within the relevant Public Transport Authority Award.
Particulars
a. Between 2024, the Claimant became aware of the matter; Industrial Relation Commission Decision (Brian Denzil Newman v Mr Pat Italiano General Manager Transperth [[2012] WAIRC 00770; (2012) 92 WAIG 2106] (21 August 2012)).
b. On 29 June 2024, the Claimant sent an email to the POD Team about the pay classification concern.
c. On 14 January 2025, the Claimant sent an email to Mr Peter Armstrong about pay classification concern.
d. On or around 7 May 2025, the Claimant escalated the concern to Alan McCluskey, HR Consultant – Classification and Establishment, [Human Resources] Services within the People & Organizational Development team.
e. On 12 September 2025, the Claimant lodged a Form 5, in the Industrial Relations Commission of Western Australia seeking a Reclassification.
Complaint Eleven
43. During 2025, The Claimant raised concerns and made complaints to the Respondent about their failures to conduct a disciplinary procedure that was fair, proper and compliance with the relevant Public Transport Authority Employment Policies.
Particulars
a. During 2025, the Claimant was subject to Notices of Alleged Breach of Discipline.
b. During the Discipline Process, the Claimant asked questions, made inquiries and raised serious concerns as to the process being followed and further issues in relation to fairness and Policy Compliance.
c. By way of example, the Claimant sent a letter dated 22 July 2025 which raised multiple questions about the process.
d. By way of example, The Claimant raised concerns as to why an investigator was not appointed to collate the evidence in a fair manner and why key witnesses were not interviewed as part of the investigation.
Damaging Action Two
55. Further or alternatively, the Respondent through Mr Peter Armstrong took Damaging Action against the Claimant by not restoring the Claimants court duties upon receiving the Claimants email dated 25 February 2025, and such would amount to an act of altering the employee’s position to the employee’s disadvantage.